Judge Brett Kavanaugh, President Donald Trump

Jack Gruber-USA TODAY

Trump Picks Brett Kavanaugh For U.S. Supreme Court

July 09, 2018 - 4:19 pm
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WASHINGTON (WCBS 880/CBS News/AP) — President Donald Trump has nominated Judge Brett Kavanaugh for the U.S. Supreme Court seat soon to be vacated by Justice Anthony Kennedy.

Kavanaugh is a longtime judge and former clerk for Justice Kennedy. He has been a judge on the federal appeals court in Washington since 2006. He also was a key aide to Kenneth Starr during his investigation of President Bill Clinton and worked in the White House during George W. Bush's presidency.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law,” Trump said as Kavanaugh stood next to him with his wife and two daughters.

Kavanaugh is a graduate of Yale University college and law school, and teaches at Harvard, Yale, and Georgetown. Trump called him a “brilliant jurist” who is “universally regarded as one of the sharpest and finest legal minds of our time.”

After Trump handed him the podium, Kavanaugh talked about his background attending a Jesuit high school and going on to become part of a vibrant Roman Catholic community in Washington, D.C. He also noted that he coaches his daughters’ basketball team, which just won the city championship.

He said he was “deeply honored” to be nominated to fill Justice Kennedy’s seat.

As to his legal philosophy, Kavanaugh emphasized a belief in strict constructionism.

“My philosophy is straightforward. A judge must be independent and must interpret the law and not make the law. A judge must interpret statutes as written, and a judge must interpret the constitution as written, informed by tradition, and history, and precedent,” he said.

When it comes to his background, Kavanaugh's long march through conservative legal circles was not without its setbacks. After leading the investigation into the suicide of Clinton lawyer Vince Foster, Kavanaugh lost his one and only case before the Supreme Court in 1995 in an attempt to get access to notes exchanged between Foster and his attorney. 

In 2000, Kavanaugh unsuccessfully attempted to prevent 6-year-old refugee Elian Gonzalez from being returned to Cuba. But later that year, he worked for then-Republican nominee Bush in Bush v. Gore, which ended the Florida recount after the 2000 presidential election.

It was after several years in the Bush White House, which included a time as White House staff secretary, that Kavanaugh was nominated for the D.C. Appeals Court. The fight over his confirmation was contentious, with Illinois Democratic Sen. Dick Durbin at one point calling him the "Zelig or Forrest Gump of Republican politics…whether it's Elian Gonzalez or the Starr Report, you are there."

Kavanaugh was finally confirmed in 2006 and has since made his name as a reliably conservative judge, although he does have his detractors on the right who have questioned his rulings involving contraception and Obamacare. But he has a resume and background that would make it hard for anyone to argue that he is unqualified for the Supreme Court.

The younger former President Bush issued a statement praising Trump for his choice.

“President Trump has made an outstanding decision in nominating Judge Brett Kavanaugh to the U.S. Supreme Court. Brett is a brilliant jurist who has faithfully applied the Constitution and laws throughout his 12 years on the D.C. Circuit. He is a fine husband, father, and friend – and a man of the highest integrity,” Bush said in the statement. “He will make a superb Justice of the Supreme Court of the United States.”

With Kavanaugh, Trump is replacing a swing vote on the nine-member court with a staunch conservative. Kavanaugh is expected to be less receptive to abortion and gay rights than Kennedy was. He also has taken an expansive view of executive power and has favored limits on investigating the president.

A senior White House official said Trump made his final decision on the nomination Sunday evening, then phoned Kavanaugh to inform him.

The official said Trump decided on Kavanaugh, a front-runner throughout the search process, because of his large body of jurisprudence cited by other courts, describing him as a judge that other judges read.

On Monday, Trump phoned retiring Justice Kennedy to inform him that his former law clerk would be nominated to fill his seat. Trump signed Kavanaugh's nomination papers Monday evening in the White House residence.

Top contenders had included federal appeals judges Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman. Relishing the guessing game beyond the White House gates, Trump had little to say about his choice before the announcement.

Some conservatives have expressed concerns about Kavanaugh, questioning his commitment to social issues like abortion and noting his time serving under Bush as evidence he is a more establishment choice. But his supporters have cited his experience and wide range of legal opinions.

Kavanaugh is likely to be more conservative than Justice Kennedy on a range of social issues. At the top of that list is abortion. A more conservative majority could be more willing to uphold state restrictions on abortion, if not overturn the 45-year-old landmark Roe v. Wade decision that established a woman's constitutional right.

Kennedy's replacement also could be more willing to allow states to carry out executions and could support undoing earlier court holdings in the areas of racial discrimination in housing and the workplace. Kennedy provided a decisive vote in 2015 on an important fair housing case.

While the president has been pondering his choice, his aides have been preparing for what is expected to be a tough confirmation fight. The White House said Monday that former Arizona Sen. Jon Kyl would guide Trump's nominee through the grueling Senate process.

Kyl, a former member of Republican leadership, served on the Senate Judiciary Committee before retiring in 2013. He works for the Washington-based lobbying firm Covington & Burling. The White House hopes Kyl's close ties to Senate Republicans will help smooth the path for confirmation.

Trump is hoping to replicate his successful nomination of Justice Gorsuch last year. The president spent the days leading up to his announcement discussing the pros and cons of various contenders with aides and allies.

The White House invited a number of senators to attend the Monday night announcement, including Judiciary Committee Chairman Chuck Grassley (R-Iowa) and committee member Kennedy.

The president will now be trying to win the votes of moderates for his nominee, in particular, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine to support his nominee, as well as the three Democrats who voted yes on Justice Neil Gorsuch, his first nominee, Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana. He invited the three Democrats and Collins to the White House, CBS News' Ed O'Keefe and Alan He reported. The senators all declined.

"While I appreciate the invitation from the White House to attend this evening's announcement, I declined so that I can meet first with the nominee in a setting where we can discuss his or her experience and perspectives," Donnelly said in a statement. "In the coming days, I will be reviewing the record and qualifications of the president's nominee."

Heitkamp said through a spokesperson, "She has made clear - as she said to the president in person two weeks ago - that she considers fully vetting Supreme Court nominees one of the most important jobs of any U.S. senator, and she plans to fulfill that critical duty."

Senate Minority Leader Charles Schumer (D-New York) raised alarms about the Kavanaugh announcement right away.

“In selecting Judge Brett Kavanaugh for the Supreme Court, President Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block,” Schumer wrote. “His own writings make clear that he would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act.”

Sen. Bob Casey of Pennsylvania released a statement even before Trump released his pick, announcing that he will oppose the president's Supreme Court nominee -- no matter who it is.

"I will oppose the nomination the President will makes tonight because it represents a corrupt bargain with the far Right, big corporations, and Washington special interests."

The announcement prompted reaction from White House Deputy Press Secretary Raj Shah who tweeted, "Unfortunate (though not surprising) that even before his or her qualifications can be evaluated, Sen. Casey is refusing to even consider the President's #SCOTUS nominee."

Another potential hurdle for Kavanaugh may be his opinions on how criminal proceedings should apply with regard to a sitting president.

Despite his involvement in the Starr investigation, Kavanaugh has written that Congress should pass a law protecting a sitting president from being subjected to civil suit. In that same paper, Kavanaugh argued that the "indictment and trial of a sitting president…would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arena" and that "even the lesser burdens of a criminal investigation…are time consuming and distracting." 

But Politico White House Correspondent Christopher Cadelago said the White House will hit the ground running in an effort to fast-track confirmation.

“They’re disseminating a number of packets on more than just these two potential nominees, but four; as many as five biographies, lists of their best-known rulings, over to the folks on Capitol Hill, as well as to scores of outside conservative activist groups to basically guard against folks on the left kind of tainting these folks before they can get their name out there,” Cadelago said.

While the confirmation process for Gorsuch went relatively smoothly, Cadelago told WCBS 880’s Steve Scott and Michael Wallace this time will likely be tougher – with Democrats very energized in an election year.

“There’s a lot of pressure from their base to oppose this pick, and so we’re looking at a much more heightened political climate,” Cadelago said.

With U.S. Sen. John McCain (R-Arizona) ailing, one Republican will not be available for the vote. Thus, all it would take would be one defector to put the nominee in general – assuming no Democrats vote to confirm.

“This could all come down to Maine Senator Susan Collins, who of course has expressed a desire to keep Roe v. Wade intact, and so her vote is going to be very important,” Cadelago said. “But Republicans say that they might be able to get some of these red state Democrats to sign on, who are running for reelection in November in states that Trump won by a minimum of 20 percentage points.”

The White House will not say whether they will push the Supreme Court to go after abortion rights and overturn Roe v. Wade.

“It’s a strategy not to focus on that by name. But there are cases in the pipeline that are already moving forward, so the outside pro-life anti-abortion groups expect a case to come up soon,” Cadelago said.

Some Tri-State Area lawmakers weighed in before the annoucement Monday on qualities they think a Supreme Court justice nominee should have.

As WCBS 880’s Kelly Waldron reported, U.S. Rep. Lee Zedlin (R-New York) said regardless  of who the president is, who the last president was, or who a future president might be – whether it is a Republican or a Democrat – the nominee should not be an activist on the bench.

“Someone who is going to be interpreting the Constitution and the law strictly” is needed, Zeldin said.

Meanwhile, when looking at the short list, U.S. Sen. Richard Blumenthal said he was not thrilled. He said President Trump let the very conservative Federalist Society came up with the names.

“The president in effect is making himself a puppet of these groups,” he said.

(© 2018 WCBS 880. CBS News and The Associated Press contributed to this report.)